20190624 TZHC Mwanza2

. ,. ( . ' .. • . IN THE HIGH COURT OF TANZANIA I ATMWANZA I CRIMINAL APPEAL NO. 325 OF 2018 [Appeal from the Judgment of the Re~ident Magistrate's Court Musoma in (riminal Case.No. 6 of2018 dated'J4'1 November 2018: Hon J.O. Ndira-Resident Magistrate] BAGINI MONGO ..........·....................... 1111m ■■ 11••·············~- APPELLANT - . VERSUS ·~ ' . . I .. ·••······i········· \ ~RESPONDENT REPUBLIC ...................... m••················• \r'v 2!Jh April 2019 & 24'1 June/ 201,9 M~M. SIYANI, J. . The trial c~s-r.~~~ltna'i the appellant and one Saranga Makebe, wer~~~over a piece of land located at Busegwe villa~i~iz1_a~ifrict. Around\ 18hrs on 15th October 2018, the two {( ")\ ~ l met m:1d they ext:lianged words over ownership of the said land something w h i c ~ Z e appellant who was in a company of his two sons. It was alleged that the appellant then took a sword and stated to assault the victim until he lost his consciolsness. The assault was witnessed by Happiness Salanga, the wife of thJ victim who raised an alarm for help and those who responded took thJ victim to the Police station and later l to the hospital for medical examination and treatment. A PF3 tendered and admitted as exhibit Pl, shoJ the victim had multiple cut wounds in his head. On 24th January, 2018, the ap ,ellant was arraigned at the Resident · Magistrate Magistrate's Court M1soma and indicted)&~ne count of . I ~~R causing grievous harm contrary to.section 225 of\'vnal Cxl~Gap 16 RE 2002. At the conclusion of thel case,, th&!')~aAt w~icted and 1~~\\ . sentenced to serve a term of fJve ~s~01.·e_a.rs·••-.:imRr1sonment and to ~\ 1 ~.~··~ compensate the victim the sum·o~~0/=. . appeal with tl'1:s,w~~3) grounds: . ~ e a · ~ ~ trial Magistrate erred on point of law and fact ~~i)prosecution wlnesses credible despite the glaring cor1tcaa/ctJons. 2. That the learned trial magistrate erred on point of law and fact for failing to make critical ahatysis and scrutiny of the evidence ! hence reaching an im~ropeyinding. . . . .. 3. That the sentence imposed by the prosecution side was I excessive and that mitigation factors were not considered on the 2 ( part of the accused person when imposing an order for I compensation. I As it was during the trial of this matter,· when the. appeal came for hearing· . I on 29th April, 2019, Ms Tumaini advocate appeared for the appellant and . I . Ms. Changale the learned State Attorney appeared for the respondent. On . being accorded a chance to addre~s the court, arur,ise~~i~~GI to start by moving the court under sJction. 43{:l o~~VMagis~1?c:urts . ·. , ~.\ 1/ ~ . Act Cap 11 RE 2002 and section ~72<?'t.N~e Cnm,~I.\P ,r:ocedure Act Cap .20 RE 2002 to revise . the entrre"proceedm;gs -~~0 > . and'judgment of the tnal did not indicate whether t t \ ~ e I~ done by the applicant Was "unlaw~ully" ~ h i c\~a[~'Zcessary f ingredient in an offence of causm·g.. ~tiarm. MC,T-uma1rn found support in her stance from ~~~ I the qase-ot"Balukunika s/o Mhozi Vs Republic (1968) HCD 392 where incl~s~•\onof 1~ "unlawful!~" in charges involving offences of . grievous ~ ,. arm;,,was emph ' d. as1ze In view of the learned counsel, by omitting the word "unlawfully" the I charge sheet was incurably defectiive under section 388 of the Criminal .. d . . .. - • I . Proce · ure Act Cap 33 RE 2002 ,or denying the appellant a fair chance to 3 ( defend herself. With support from the decisions of the Court of Appeal of Tanzania in Juma Ismail and Another Vs Republic, Criminal Appeal No. 501 of 2015 and Zephania Siyame Vs Republi~, (2016) TLSR 326, Ms Tumaini therefore prayed the trial court's proceedings and the imposed ., . at the trial court, I wish to start by reproducing the contents of the said charge sheet as hereunder: GRIEVOUS HARM Contrary to section 225 of the Penal Code Cap 16 RE 2002 4 PARTICULARS OF THE OFFENCE: ' BAGINI D/0· MONGO on, Jsth day of Octoper, 2017 at Busegwe village within Butiama District in Mara Region caused grievous harm to one SARANGA S/0 MAKEBE. DATEDatMUSOMA this J;th day ofJANUARY 2018 . I . ' STATEATTORNEY ~ i />-_h ~ As .md.1cat ed. above, th e appe II an t was"<:hai:gech1~aus1ng . grievous · harm /:l~~~v under section 225 of the Penal C::o_tJe ~:116~ 2002. The section thus provides: -I ~ 225. A~~n!awfU!lv does grievous harm to another is guitty,A\renc;;,),;J>is liable to imprisonment for seven -,~':../.,....'-----v ! r-Un'd~'Emphasis rpplied] A p p a r ~ the charge shee~ above, does not disclose whether or not the grievous harm sustained ! by Saranga Makebe, was unlawfully inflicted by the appellant. The wordings of section 225 of the Penal Code, included elements of "unlawfulness of the act causing grievous harm" as a necessary ingredient. Therefore being an all but important element of the offense of causing grievous harm, the charge sheet ought to have I . ::i ~ revealed that the appellant's act w1as unlawful. Similarly for such offense . I to stand, there must be proof that an act which caused the alleged I grievous harm, was unlawful. In my considered opinion, the rationale is . . I . . simple, not every act leading to: grievous harm is unlawfully. An act causing grievous harm, will not b~ an offence under section 225 if the same was lawfully done. An examble can be drawn f~grievous harm ~ ~ 1 . d .in JUS cause . t·f· 11ed .incI.d·ens t of se lf-d.e,ense or use . o,--r)sona /:/) t o ~~b-1 e,,orce ~\\i;{~"';;ve and confront an imminent threat of dlath or proximate threat to life. In these s~\~~ done causing grievous harm, such acts ~-b~siE~~ully depending with the circumstances.and so not a?o;:deb~ec'tion 225 ofrhe Penal Code. V That said, fJr~_a.-cha•9_ e of'g ievvous harm to be proper, the particulars of .the offence"'" \_l )? ! - m~1s~lemTts of unlawfulness of the act as a nec~~\e~nd failure tb do so renders the charge incurable defe~yblished principle 1f law in our country is that for criminal i prosecution to be fair, a charge sheet must disclose essential elements of . . . I .- the offence to enable the accused person understand the nature of the l said ·charges. See Mussa Mwaiktinda Vs Republic (2006) TLR 387. I j I 6 ( The need to have essential elements of offence disclosed in a charge sheet, as a requirement of law under section 132 of the Criminal Procedure Act was underscored by the Court of Appeal of Tanzania in . . I. . . Isdori Patrice Vs Republic, Criminal Appeal No. 224 of 2007 where the following was observed: 't" .1.1 . _,, .,,, .. t'"t..~t~ ~ .z? 1s manc.1adJry SLaLULOry requ1remen u1a \ver.y...c,1arg~a subordinate court shall cont~in not ~'< s}at/4J~f the specific offence with which t~e atcCl.'Sed__pe~o(!_\(.charge4 but . ~ "'-)~~ ~ \) ~~ "'~ such particulars as may be necessar,y for-..gjving reasonable "-/ information as to the nature ol,the offeaGe charged It is now trite law that the pa{:;;;;s! 0ti'he~✓,ra>Je shall disclose the essential elements \dr in(;f;a"le-ntf7'ar the offence. This . requ1remen t fj<'."" ' ~ lit.. JI ru,es 1nges~,L~1c .I . • f ;aw of cnm,na I and eviden~rff~-.fha.u;e prosecution has to prove that the accus~~'l!J'itted...the)ctus ~eus of the offence with the mens rot:din ~rticulJs in order to ive the accused a ~ir trial in\iJJl';;;g him to pr~pare his defense, must allege the e's-sential tabk of the offence Jnd anvintent specificallv required ~~✓ I by law.-[Onderlined Emphasis:supp/ied] In the case of Juma Ismail and Another Vs Republic (supra) which was referred to me by Ms Tuma'ini, the Court of Appeal of Tanzania reemphasized the need to have ln essential elements of the offence 7 C disclosed by the charge sheet. ifhe court stated categorically the J . following: The law requires that for the charge I sheet to .be proper it must disclose the essential ingredien.ts . I of the offence. A charge. sheet which lacks an essential ingredient of an offense does not . , ; . '\"-._ disclose an offence. A charge }heet which do~ot-disc!ose a) offence in the particulars of !the offence ~ricl--thus Jn2'arahfe cannot be salvaged under sJ.ion 3B!J:bt, th~~~e';£,ed . Emphasis supplied] .. ~ Magistrates Court 6ma, ~ta~o ~ent that the grievous harm inflicted to the victirh~~~/done. With due respect to Ms Changale, i ~ ~ g r requirements of law, such omission render;ecl~~geSheet-defective. The fact that the appellant pleaded not,,ty to th'e~, did not m~ke the same proper. She might have p l e a ~ J to indicate that !she believed the act was lawful as it was the case in Balukunika s/o Mhozi Vs Republic (supra) where this court observed: n,e word ''unlawfully// must be included in the charge. Accused ' s statement~ that he was an~1y over complainants treatment 8 ~ . of his wife and daughte0 mighthave gone some wav to show that accused did not believe that he was acting unlawful/~ or that he did not intend to do so. [Underlined Emphasis supplied] Taking a leaf from the cited decisions, I would say, a fair trial begins with a proper framing of charges. When' charges are improperly framed by omitting essential elements of the offence, the c o ~ e s goes to the root of the matter. That is an irregularity. w~i~a~~tire . . ~~- \.1/'> proceedings and so cannot be saved--b_y se~ ~ of the Cnmmal · .. ~~ ~" Procedure Act. I therefore agree.l\¼it~~~sed conviction and -~ sentence were based on a defu'etive c;:flarge~th the proceedings and f. d' f th t . I /211"h:-'0-, rt. ( . m mgs o e na c~u s w~:~~:::'.t V .. \~ )l_ ,V I on a~g,ea1J a~\ulJ:;J:n_voke revision powers conferred to this Court und(~J ('1.~a) of the Criminal Procedure Act Cap 20 Revised E d i t i ~ quashing the proceedings and set aside the impugned Judgment and sentence imposed by the Resident Magistrates Court ' Musoma in Criminal Case No. 6/2018. · I have also considered the circumstance in this case in relation to Ms · Changale's prayers to have matter be retried. In my opinion, a principle ' 9 i ..: "'\-!-.,. .•/ .- ( set in Fatahali Manji Vs Republic,[ 1966] E.A. 343, that retrial should · be ordered where the original trial +as illegal or defective has been met ' in this case. I therefore order that the records of the trial Court be remitted I to that court for retrial after the apptopriate action has been taken by the Director of Public Prosecution in enluring that the charge sheet filed in the trial Court is in accordance with the law. It further ~r-ed that should the new trial lead to the collviction,! the time t h ~ ~ ~ a t in ::::~gs::::n::~;~;:::c:~;:::,sho~~~~~unt when .~~ \ ~ ~~ f6:J .i11Y' 1 ~ a___ _ ,~,"'--- ¥-~ ~ . ~ I GE I lO